Sunday, February 28, 2010

The Charleston Post Courier has an interesting article today highlighting yet another state, South Carolina, that intends to solve some of their budget woes on the back of the corrections system.

In South Carolina, falling revenues and a series of tax cuts passed by the Republican-controlled Legislature have bled more than $2 billion from the state budget.

Word that the state's latest cost-cutting plan included possibly dumping 3,000 prison inmates on the streets sent shivers through South Carolina last week. A little-known 1982 law gives the Corrections Department the authority to release prisoners early. The law created a supervised furlough program for non-violent offenders who are within six months of completing their sentences.

Releasing as many as 3,400 inmates would reduce spending by about $30 million and would mean closing up to four prisons and laying-off about 700 employees. State Senator Gerald Malloy said early release would be ill-advised and do nothing to improve a prison system that is an "utter failure."

Not everyone in the state is opposed to early release. In 2008, the National Council on Crime and Delinquency reviewed about a dozen studies of accelerated-release programs and found no significant difference in recidivism rates between inmates who left prison early and those who served their full sentences.

South Carolina joins a long list of states who are looking to corrections to solve their budget woes. This writer has chronicled the efforts of more than a dozen other states contemplating or implementing early release plans as a budget balancing mechanism. The list continues to grow.

To read the full article: http://www.postandcourier.com/news/2010/feb/28/turn-em-loose/

Friday, February 26, 2010

Governor Jennifer Granholm of Michigan is taking some dramatic steps to balance her state's budget. She is proposing to cut corrections funding by $566 million. She plans on closing at least four prisons, reinstating "good time" to shorten criminal sentences and has begun to accelerate parole. She expects her efforts will reduce the prison population by 10,000 in 2011.

Michigan also expects to use their prisons to generate revenue by renting prison-beds to other states. The state has a $20 million contract with Pennsylvania to house 1,000 inmates.

Not everyone in Michigan is on board. State prosecutors have attacked accelerated parole as "reckless." Under Michigan law, prosecutors have the right to object to a parole action and victims have the right to be heard. Prosecutors are concerned that an expedited parole process might interfere with that procedure.

According to the Detroit News, some prosecutors are worried about more than procedure. "The number of police officers out there is at its lowest in years. And the economy is bad," said Prosecutor Eric Smith. He went on to say, "Toss in the mix an increase in parolees . . . and there is a real potential for trouble."

For the full article:http://www.detnews.com/article/20100226/METRO/2260391/1409/metro/Prosecutors-fight-Michigan-s-freeing-of-violent-offenders

Thursday, February 25, 2010

Maryland's sex offender laws are receiving intense scrutiny this year as state lawmakers respond to the recent murder of 11-year-old Sarah Foxwell, allegedly by a registered child sex offender.

In 2005, Florida legislators were in a similar frenzy. According to the St. Petersburg Times, the brutal killing of 9-year-old Jessica Lunsford, fueled the creation of a boogeyman in Florida politics: the sex offender. But now — after time, a trial and the killer's death have dissolved the zeal that spurred Jessica's Law — a number of lawmakers are rethinking how the state monitors sex offenders and whether current laws are really making children safer.

In Maryland, according to the Baltimore Sun, some lawmakers have seized on sex offender laws as a potential election year rallying point, saying the state, under a Democratic governor who tried to outlaw the death penalty and opposes civil commitment of sex offenders, has failed to crack down on predators.

Legislators are reviewing everything from the length of prison sentences for sex offenders to what information Maryland should share with other states. During a hearing that spanned nearly seven hours, the House Judiciary Committee reviewed just a fraction of the 75-plus sex offense bills that have been filed this year.

In Florida, the experience of over-criminalization and piling-on easy targets like sex offenders has opened the eyes of some legislators. "The emotion and publicity and political science that comes into play after a horrific situation tends to create an overreaction," said state representative Mike Weinstein.

The Times reported that recent studies and state statistics show that the fear that propelled the laws doesn't match reality. "Across the country, studies are not showing that changes in sex crime rates can be attributed to those policies," said Dr. Jill Levenson, a professor at Lynn University who studies sex offenders. "Sex crimes against children are on the downslide — but since the 1990s."

My Take

Maryland is a classic example of the knee-jerk reaction that often follow high-profile crimes. Florida has learned the consequences of reactionary politics. That lesson is there for legislators in Maryland and across the country.

Yet, political expediency will take precedence over the well being of Maryland residents. The GOP see an opportunity to attack a vulnerable Democratic governor on a sensational law and order issue. That is a recipe for disaster. Much of what is being proposed in Maryland is not evidence-based. In fact, much of what passes as tough on sex offenders makes children and families more vulnerable.

Case in point, sex offender residency restrictions have been implemented in some states and communities across the country. The law restricts where sex offenders can reside and have made it virtually impossible for some sex offenders to live anywhere in a given community. The result? Instead of being able to track the whereabouts of sex offenders, homeless offenders have gone underground, avoiding supervision. Families are in greater danger when a child predator disappears into the shadows, as opposed to living in plain view.

The U.S. Supreme Court made an important decision this week regarding the precision required for Miranda warnings. Kevin Powell was arrested in 2004 by Tampa, Florida Police. He was taken into custody after a gun was found at this girlfriend’s apartment. Powell was prohibited from possessing a firearm due to his history of felony convictions. After he was told by police that he had, “The right to a lawyer before answering any of our questions,” he confessed to having the gun.

Powell successfully had his confession suppressed by the trial court and the appellant courts agreed. The U.S. Supreme Court disagreed, Florida v. Powell, No. 08-1175 (2010). In an opinion written for a 7-2 majority, Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.”

Justice Ginsburg went on to write that a police officer’s warnings need not have the precision of a legal document, “But we decline to declare its precise formulation necessary to meet Miranda’s requirements.”

Wednesday, February 24, 2010

The U.S. Supreme Court ruled today, that a confession made by a Maryland man, accused of sexually assaulting his son, is admissible even though it came two-and-one-half years after he requested an attorney.

The lower court had suppressed his confession saying his return to prison directly from his custodial interrogation was not sufficient to break custody and invalidate his request for counsel.

The High Court went further and created a time limit to invoke the protections of Miranda in the lower courts. According to the Associated Press, Justice Antonin Scalia, writing for the majority, said enough time had passed between the first and second interrogations of the defendant, even though he was being held in prison.

Scalia said the high court thought it was "impractical" to let lower courts decide the time period for lawyer requests on a case-by-case basis.

"In our judgment, 14 days will provide plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel and to shake off any residual coercive effects of his prior custody," Scalia said.

Tuesday, February 23, 2010

More than 20 states, including Pennsylvania, have adopted rules allowing sex offenders to be held for life, even after they have completed their sentence and paid their debt to society. Civil commitment statutes have been deemed constitutional by the U.S. Supreme Court.

According to the Washington Post, Maryland went in a different direction, instead of civil commitments policymakers chose to employ a web of supervision laws to surround offenders and stay poised to pounce on any violations and return high-risk sex offenders to prison.

Last December, the killing of 11-year-old Sarah Foxwell, allegedly by one of the state's high-risk registered sex offenders, has shaken public faith in the state's ability to identify and keep its worst offenders from assaulting again.

Maryland's House Judiciary Committee is scheduled to begin hearing the first of at least 52 bills to tighten restrictions on sex offenders. According to the Post, all of the bills were introduced after Sarah's murder. Governor Martin O'Malley is proposing mandatory lifetime supervision for some sex offenders.

According to the Frederick News-Post, Delegate Sue Hecht will introduce legislation to establish civil commitment in Maryland. In a twist on traditional law and order politics,Hecht, a Democrat, faces opposition on civil commitment from a Republican, Delegate Michael Smigiel.

The full Post article can be found at: http://www.washingtonpost.com/wp-dyn/content/article/2010/02/22/AR2010022204723.html

Monday, February 22, 2010

Virgina's regional prison authorities are outraged by the state's decision to house out-of-state inmates. The outrage comes as local jails are paying for a portion of the cost to house state prisoners.

According to the Virginia News-Advance, state law calls for transferring convicted felons to a state prison within 90 days of sentencing. Local jail officials and the Department of Corrections (DOC) concede that the requirement is rarely enforced. As of mid-February, approximately 4,327 state prisoners were in local jails awaiting removal to state prison, according to DOC figures. That’s an increase of about 57 percent from the same period last year.

While jail officials at the local level have been responsible for inmates awaiting transfer to state prison for years, the issue has become more urgent for two key reasons: the number of prisoners awaiting transfer has spiked, and budget cutbacks from the state have made the cost of supporting state inmates more difficult.

At the same time, local jail officials question a $20 million deal announced in December that will bring 1,000 inmates from Pennsylvania to Green Rock Correctional Center. The deal is a revenue producing effort to help the DOC function at its current capacity.

My Take

The state is generating revenue on the backs of local jails. The only way that Virginia has room in its state prisons for inmates from Pennsylvania is to house some 4,000 state prisoners in local facilities. Virginia's "slight of hand" revenue producer has one more component. The state intends to reduce the reimbursement it provides local jails for housing state prisoners. Now that's gratitude for helping raise $20 million in out-of-state revenue.

Sunday, February 21, 2010

Last month, Louisiana carried out its first execution in eight-years. Gerald Bordelon raped and murdered his step-daughter. He wanted to be executed. If fact, his attorneys purposely delayed filing legal requests in other cases so as not to inadvertently delay Bordelon’s execution.

The day after Bordelon’s execution a Louisiana Court tossed out Nathaniel Code’s suit to halt all executions in the state until the Department of Public Safety and Corrections changed its procedures. Code, of Shreveport, was condemned to die for the 1985 murders of four people. He claims that Louisiana failed to follow proper administrative procedures before putting its lethal injection procedure in place.

Louisiana followed the court’s ruling with an unprecedented action. According to the Baton Rouge Advocate, the state has filed a counter suit against Code, and 83 other death row inmates, asking the court to formally declare — “once and for all’’ — that the state’s lethal injection protocol is not subject to the Louisiana Administrative Procedure Act. Wade Shows, attorney for the Department of Public Safety and Corrections, said with regard to disclosing the method of lethal injection,"It’s sort of an internal management decision.’’

Courts in Maryland, Nebraska, California and Kentucky have found that the administrative procedures requirement applies to lethal injection, while courts in Missouri and Tennessee ruled it does not apply. Lethal injection opponents have also argued that the last drug in the three-drug lethal injection protocol may cause excruciating pain, which dying prisoners cannot express because the initial drugs cause paralysis.

My Take

Louisiana’s fight over lethal injection is much ado about nothing. The suggestion that the state must disclose the procedure of lethal injection is spurious. No one suggested after Bordelon’s execution that the state used some mysterious substance to inflict cruel and unusual punishment.

In 2008, the U.S. Supreme Court upheld the constitutionality of lethal injection in Baze v. Rees, 553 U.S. 35 (2008). The decision grew out of a challenge to Kentucky's three-drug method of lethal injection. Lawyers for condemned killers Ralph Baze and Thomas Bowling asserted that lethal injection violated the Eighth-Amendment ban against cruel and unusual punishment.

Last fall, after the botched attempted execution of Romell Broom, Ohio decided to proceed with executions using a single drug. Ohio carries out executions using a lethal dose of anesthetic. The state has carried out three executions using the single dose method.

Lethal injection challenges are intellectually dishonest. No one on death row tells their lawyer, “I want to die, just not by lethal injection.” Right along with every lethal injection argument is a habeas corpus argument challenging the conviction and a request for clemency. Lethal injection challenges merely delay the inevitable.

To read more about Louisiana's law suit visit: http://solitarywatch.wordpress.com/2010/02/12/louisiana-sues-its-own-death-row-prisoners/

Saturday, February 20, 2010

The recent machinations in the Illinois legislature point to the often schizophrenic response of policymakers grappling with two apparently incompatible problems- dwindling resources and a zest for being tough on crime.

Like many other states, the Illinois prison population has exploded, doubling since the 1980s to about 45,000. According to NPR, the overcrowding has been fueled in part by tough drug laws. In addition, more than 30,000 former inmates are currently on parole. Those inmates and parolees cost Illinois taxpayers more than $1 billion per year.

Governor Pat Quinn faced with a budget shortfall instituted an early release program to save some money. The projections from the Department of Corrections were that Illinois would save $5 million by releasing some prisoners early. The inmates were to be equipped with monitoring devices and offered treatment programs on the street. The problem was that Illinois was incapable of not only tracking the offenders, but the state wasn't even sure who was released. The early release plan was suspended after some of the released offenders committed new crimes.

As a result the legislature swung into action. A House committee recently approved revising the early release plan. The bill would stop prisons from awarding "good time" for prisoners who had not served some minimum time in state prison.

At the same time the Illinois House approved legislation that would impose tougher penalties on heroin dealers. According to the Chicago Tribune, the minimum sentence for possessing five grams of heroin with the intent to sell would jump from four years to six years under the measure.

My Take

The heroin legislation would further complicate the prison overcrowding problem being addressed by the proposed early release legislation. On one hand the legislature wants to let non-violent offenders (often drug offenders) out early and on the other hand they want to keep some drug dealers longer. What's worse, both pieces of inconsistent legislation are sponsored by the same lawmaker, Representative Dennis Reboletti.

There is one more aspect to Illinois' bizarre plan to deal with prison overcrowding. The governor wants to sell the Thompson Correctional Center to the federal government to house the Gitmo detainees. According to the Medill Reports, the governor has the authority to sell surplus property without the consent of the legislature, according to an opinion released by Attorney General Lisa Madigan. It is safe to assume that the governor's intent has little to do with rights of detainees and everything to do with a spiralling budget.

However, the House recently passed a bill requiring lawmakers to approve all sales of expensive state property, including the Thompson prison. The proposal would require the state to receive approval from the General Assembly before selling unused, state-owned property valued at over $1 million. Senator Randall M. Hultgren, who co-sponsored the bill said, “I think the worst thing is to sell it and realize that we really needed it … for our own prison population.”

Illinois does need the Thompson Correctional Center. The state just can't afford to fully staff it. Why? The corrections budget, which soared to $1 billion when prisons were flush with inmates and staff, is now being painfully and often imprudently pruned.

Friday, February 19, 2010

Public safety has become an issue as state budgets tighten. Illinois Governor Pat Quinn's early release program recently came under fire after reports surfaced that some criminals who got out were arrested for new offenses. Notwithstanding, a number of other states including Colorado, Washington, Kentucky, Oregon and California have opted to release state prisoners to reduce budget expenditures.

According to the Idaho Statesman, Idaho isn't interested in early release of prisoners even though it's trying to slash about $130 million more from Gov. C.L. "Butch" Otter's proposed budget. Department of Correction Director Brent Reinke's budget has already been cut to just $168 million, down from nearly $200 million in 2008.

Construction of a $50 million mental health prison has also been delayed until at least 2011 because Idaho officials are unsure if there will be enough money to staff the facility or cover bond payments to pay for the new prison.

To read the entire article: www.idahostatesman.com/531/story/1085069.html

Thursday, February 18, 2010

Lock'em up is no longer the mantra of Florida's criminal justice system. Governor Charlie Christ might not yet be ready for the Criminal Defenders Association man of the year award, but Christ has made a radical departure form his previous position on crime and punishment.

In previous posts, I have detailed California's questionable decision to cut prison treatment and education programs as well as Texas' ongoing debate about closing some of its 112 state prisons. Texas and Florida have earned hearty reputations as law and order states. Their change of direction with regard to prisons is nothing short of astonishing.

Early in his political career, Governor Christ earned the moniker "Chain Gang Charlie" for his support of re-instituting chain gangs in Florida. He presides over a state that has 60 prisons, 41 work/forestry camps, one treatment center, 30 work release centers and five road prisons. The prison population has grown to over 100,0000. Today, Florida has the nations third largest prison population behind only California and Texas.

That is why the recent report in the St. Petersburg Times is so surprising. The state has backed away from plans to build more prisons and will instead invest in re-entry services and prison diversion programs. Governor Christ's proposed budget includes no money for new prisons.

Not everyone is on board in the Sunshine State. The Times reported that a key player, the chairwoman of the house criminal justice budget committee is opposed. Representative Sandy Adams said, "I don't believe we need to let criminals out of institutions just for budget purposes."

My Take

Governor Christ's change in direction has little to do with a more enlightened way of governing. It has everything to do with tight budgets. According to the Times, each inmate in Florida cost about $20,000 a year. With more than 100,000 inmates and a projected increase of 15-percent over the coming years Florida's prison system is unsustainable.

Treatment can be done on the cheap and provides cover for politicians who have no choice but to let more people out of prison, put fewer offenders in prison while trying to maintain a tough on crime persona.

Meaningful, evidence-based treatment is a different story. It must be implemented with well trained facilitators in sufficient dosage to make an impact. Florida can do more harm than good if policymakers use treatment as political cover and not as a tool to reduce recidivism.

Wednesday, February 17, 2010

Governors around the country are struggling with ever tightening budgets and ever expanding prison costs. Michigan is looking to reinstate "good time" to help save money. "Good time" rewards inmates who have not misbehaved in prison. In Michigan, an inmate would receive five-days credit for each misconduct free month in the first two-years and gradually increases over time.

"Good time" was phased-out over a period of twenty-years, beginning in 1978. According to the Detroit Free-Press, bringing back "good time" will be daunting. Michigan voters overwhelmingly voted to repeal "good time" in 1978 and 75-percent of the legislature would have to vote in favor of reinstating "good time."

Does "good time" increase recidivism? In 2003, the Washington Legislature increased earned time from a maximum of 33 percent to 50 percent for eligible nonviolent offenders. The Oregonian reported that the Washington State Institute for Public Policy analyzed the impact of the changes. The institute reported that the law has been effective: criminal recidivism has not increased and taxpayer costs are lower. There was no statistically significant effect on violent criminal recidivism, but a statistically significant decrease for nonviolent crimes. Overall, 39 percent of offenders released under the new law were convicted of a new felony within three years compared with 42-percent under the prior statute.

My Take

The flaw with "good time" is that it rewards only good behavior. A component of "good time" should include successful completion of treatment. An inmate who merely has good conduct without any intervention is really no different than when he entered prison. "Good time" would be more effective if it included treatment and education making it "smart time" not just "good time."

Tuesday, February 16, 2010

California is in the midst of an unprecedented budget crisis. The corrections budget has been slashed by $1.2 billion. The state is under federal court order to reduce the number of prison inmates.

California has a 70-percent recidivism rate, the highest in the nation. As well as approximately 170,000 inmates, the most in the nation. So what will California do to address dwindling prison resources?

The corrections department is cutting treatment programs, education programs and vocational programs. According to the San Francisco Chronicle, more than 20,000 inmates will be denied programming. In fact, San Quentin Prison will shut-down 13 of 19 programs.

California appears to be moving in the opposite direction of most states. Texas is contemplating closing prisons as a result of recent investments in prison treatment. Texas attributes reductions in recidivism to their aggressive treatment efforts. Bill Sabol of the U.S. Justice Department told the Houston Chronicle that Texas was one of two states showing the biggest drop in imprisonment rates. The number of people imprisoned per 100,000 population decreased by 30, going from 669 to 639 per 100,000.

Between 1985 and 2005, the state prison population grew 300 percent and Texas spent $2.3 billion adding 108,000 beds. The Chronicle reported that by 2005, Texas had reached a turning point: Either spend half a billion dollars to house 17,000 new prisoners or spend less than half that amount to reduce the prison population through treatment programs. The result was 10,000 beds were set aside for substance abuse and mental programs for probationers, parolees and prisoners.

My Take

A study conducted to determine if treatment would pay for itself in California suggested that every dollar spent on treatment would save taxpayers seven dollars in costs associated with re-incarceration. Savings are primarily attributed to reduced crime and increased employment earnings.

A recent study by the Cognitive Behavior Treatment Review found that cognitive-behavioral programming could reduce recidivism by as much as 21-percent.

In spite of compelling research California has opted to ignore evidence-based research to save a short term buck at the expense of the long term safety of its residents. In classic doublespeak, Corrections Secretary Matthew Cate suggests that the reductions in treatment funding are, "Landmark achievements that will reduce crime."

Monday, February 15, 2010

Texas is considering closing prisons. That may not seem surprising at first blush. There are a number of states that have closed prisons including Michigan, Virginia and Missouri to name a few.

The lone star state has reveled in its reputation as America's leader in law and order. In the modern era of the death penalty Texas has executed 449 killers. Virginia is second with 105. In 1990, there were 35,000 inmates in Texas state prisons. Today, there are approximately 153,000 offenders in state prisons. Texas has 112 state prisons to house those inmates. Just a couple of years ago closing prisons in Texas would have been unthinkable.

The unthinkable is now on the table in Texas according to the Austin American-Statesman. "Closing prisons? It's absolutely on the table," said House Corrections Committee Chairman Jim McReynolds. "As tight as our budget situation looks, we cannot unravel the fledgling system of diversion and treatment programs that are paying big dividends now for the states. And there's only one other place to look — prison operations."

Not everyone agrees. "We certainly can't compromise public safety, and I'm opposed to closing prisons just to save a buck," said Senate Criminal Justice Committee Chairman John Whitmire.

Regardless of the action Texas takes it still appears to be a harbinger of what is to come as state budgets tighten and prisons continue to grow.

Sunday, February 14, 2010

A recent survey of retired New York City police commanders suggests that the NYPD commonly downgrades crime to improve the city's reputation in fighting crime. Last week the New York Times revealed a survey conducted by John A. Eterno and Eli B. Silverman.

The researchers surveyed 323 former NYPD commanders and administrators and found that throughout the CompStat era the police "felt enormous pressure to downgrade index crimes."

CompStat is a crime tracking or mapping computer system that provides data for weekly meetings where crime fighting strategy is established and where the 76 precinct commanders are held accountable for fluctuating crime rates in their areas. Index crimes are those crimes that are reported by law enforcement agencies across the United States through the Uniform Crime Reports (UCR). The UCR focuses on homicide and non-negligent manslaughter, robbery, forcible rape, aggravated assault, burglary, larceny/theft, motor vehicle theft, and arson.

With allegations of devaluing thefts so they would not appear on the UCR or police officers trying to persuade victims not to file complaints, New York is abuzz with the talk of a brewing scandal. Mayor Michael R. Bloomberg said, "I have an enormous amount of confidence in the data in terms of it being as accurate as you can possibly make it."

My Take

Bloomberg has every right to be confident. There are two obvious reasons why the survey results make no sense. First, the National Crime Victimization Survey (NCVS). The NCVS collects data directly from victims. Respondents are asked if they have been victimized within the previous six-months. The NCVS shows crime drops parallel with the NYPD since the early 1990's.

Secondly, homicide is often looked at as the gold standard for interpreting crime rate trends. It is difficult to downgrade a murder or pretend like it never occurred. New York's astonishing decline in homicide speaks for itself. In 1990, there were 2,245 murders in New York City. In 2009 there were 461 murders.

While there may be some fudging of numbers, there is no question that the crime drop in New York has been nothing short of miraculous. Holding precinct commanders accountable may be unpalatable to the Captains Endowment Association, the group that represents retired police administrators,but it certainly has had an impact on New York's neighborhoods.

Saturday, February 13, 2010

A new study published in the Cognitive Behavioral Treatment Review may provides some insight into declining crime rates over the last 20 years. The study authored by Gregory L. Little, Ed.D. and Kenneth D. Robinson, Ed.D. is the first known 20-year recidivism comparison of a treatment program utilized in the criminal justice system.

The study followed nearly 1,500 offenders, some of whom participated in moral reconation therapy (MRT). In the late 1980's, MRT was introduced in correctional settings and provided for small groups of offenders to meet multiple times a week with a trained facilitator to participate in exercises and homework to influence changes in the offender's criminal thinking and behavior.

After 20 years, the authors compared the criminal history of those who participated in MRT and those who did not participate. Those offenders with MRT were 21-percent less likely to be reincarcerated. One in five MRT graduates had no criminal offenses over the 20 years. For those offenders without MRT, a little more 1 in 20 had clean records over 20 years.

Let's say one-million offenders received MRT over the last 20 years. Two-hundred-thousand of those offenders have since lived a crime free life. The state of Ohio provides another perspective on the impact of offender treatment. There are approximately 50,000 offenders housed in Ohio correctional facilities. If every inmate would participate in MRT, Ohio should expect a 21-percent reduction in the number of offenders returned to prison.

The accepted recidivism rate for offenders returning to prison within three years is 66-percent. A 21-percent reduction in recidivism due to MRT would decrease Ohio's prison population by nearly 7,000 inmates. At $24,000-a-year per inmate Ohio could save $160-million a year.

Crime has declined nationwide over the last 20 years. We have heard the decline attributed to better policing, more police officers, decline in crack cocaine use, easing of gun control regulations, fewer young people, better trauma care and even abortion. It appears that criminologists have overlooked the impact of offender interventions like MRT, substance abuse treatment and vocational training in reducing crime rates.

Wednesday, February 10, 2010

Dauphin County, Pennsylvania Judge Richard Lewis denied a defense motion to ban the use of the website Twitter from his courtroom during the trial of former state representative Mike Veon and three co-defendants.

According to the Pittsburgh Tribune Review, Lewis said preventing the sending of news snippets known as "tweets" before they've even happened would constitute "an impermissible prior restraint on speech protected by the First Amendment."

Ironically, in addition to a few reporters, one of the defendants, Stephen Keefer, was posting "tweets" about the trial. Again, according to the Tribune-Review, Keefer wrote,"Sorry folks. No more tweets from court," Keefer added, "AG's (attorneys general) R worried about me saying anything bad about (Tom) Corbett or this phony investigation." Tom Corbett is the Republican state attorney general. His office is prosecuting the four Democrats while he campaigns for governor.

Twitter is a free social networking (microblogging) service that enables users to send and read messages known as tweets. Tweets are text-based posts of up to 140 characters displayed on a web page as well as delivered directly to subscribed "followers."

Nationwide, courts have struggled with the use of twitter in the courtroom. In 2007, U.S. District Judge Arthur J. Schwab allowed reporters to post stories live during a criminal trial in Pittsburgh. A federal court in Kansas permitted the use of twitter, while a federal court in Georgia prohibited its use during a recent trial.

There appears to be little concern about the public learning instantly the nature of testimony as it is presented at trial. Trials are open to the public and the public is invited to attend such proceedings. In fact, the constitution encourages the open and transparent conduct of judicial business.

The concern with twitter lies in otherwise sequestered witnesses (those barred from hearing the trial testimony before they testify) having access to testimony through twitter. This appears to be a specious argument. Sequestered witnesses have had access to trial testimony for as long as newspapers have covered trials. Judge Lewis in the Veon trial has addressed the concern with a further admonishment to witnesses to avoid not only newspaper and other media reports, but also electronic communication before testifying.

Inevitably, some witnesses will try to gain access to trial testimony, just as some jurors will do independent research during trial. The conduct in both instances is highly unethical and inappropriate. However, a blanket prohibition against twitter or blogging in the courtroom will not alleviate those few who ignore the rule of law.

Sunday, February 7, 2010

Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are sex offenders. They are sexually violent predators, as determined by a civil court, and are being detained indefinitely.

Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country. Ohio does not have a civil commitment statute for sex offenders.

Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.

In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.

Clear evidence

To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

Last month, the U.S. Supreme Court heard arguments on a challenge to the federal government’s authority to impose civil commitments. In U.S. v. Comstock, the high court must decide if the federal government usurped the power of the states through the Adam Walsh Act. Graydon Comstock was sentenced to three years in prison for possession of child pornography. Just days before the end of his sentence he was designated “sexually dangerous,” was civilly committed, and has been kept in a North Carolina institution for the last two years along with 105 other similarly situated men.

There are some striking differences in the Kansas statute and the federal statute. First, in Kansas an offender is entitled to a jury trial, a federal detainee is not. In Kansas, the state must prove the mental abnormality beyond a reasonable doubt. In federal court the burden of proof is a less stringent — clear and convincing evidence.

According to the Washington Post, a majority of the court seemed inclined to side with the government during the Comstock argument. Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”

A greater concern may be how far does the concept of protecting the health and safety of the public reach?

The state of Virginia uses risk assessment to determine the duration of sentences. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?

Stephen McCallister, the Kansas solicitor general does not think it implausible. He told NPR, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law.”

U.S. Sen. Scott Brown, R-Mass., last month scored a dramatic upset victory in the special election to replace the late Sen. Ted Kennedy in the U.S. Senate.

Brown, who was sworn in as the Senate's 41st Republican on Thursday, is not likely to be your typical GOP senator.

He is pro-choice, pro-death penalty and although he was an ardent supporter of health care in Massachusetts, he used President Obama's health care plan to trounce Massachusetts Attorney General Martha Coakley in the balloting on Jan. 19.

That may seem a bit disingenuous, but in reality Brown has a consistent position. He has said he believes health care reform should be left to the states. He told Meredith Vieira on NBC's "Today" show the morning after his election, "Well, I think we should allow the states to do what's important for their own states, have the federal government incentivize those individual states. And while I believe everybody should have insurance, I initially have to look out for our state."

Brown would do well to look at the states' response to prison health care and prison crowding before he so confidently pushes the uninsured off on to the states. Massachusetts has managed to insure 98 percent of its residents, while the rest of America has 43 million people uninsured. At the same time, while Michigan is closing prisons and renting beds to other states, Pennsylvania is building prisons and currently renting from Michigan.

Why the dramatically different responses? It is not just Michigan and Pennsylvania that have gone off in opposite directions. There seems to be as many responses as there are states to the pressing problem of dwindling budgets and expanding prison populations.

No one questions the seriousness of the problem. In little more than 20 years, the national prison population has nearly tripled from roughly 600,000 in 1987 to 1.6 million in 2007. Combine the number of people in prison with the people sitting in county and local jails, and the number of Americans behind bars balloons to 2.3 million. The Pew Center on the States reported that 1 in every 100 adults in the U.S. are in jail or prison. In fact, the U.S. imprisons more of its citizens than any other nation in the world.

There is no question that incarceration has had some impact on crime rates. Two of America's leading criminologists, Alfred Blumstein of Carnegie Mellon University and James Q. Wilson of Pepperdine University, both concede that incarceration has an impact on crime rates; they differ as to the degree. Wilson said, "Incarceration lowers crime rates, but no one thinks that prison is the whole answer." Blumstein contended, "There is little question that incarceration can contribute to crime reduction, but rarely as much as its advocates claim."

There is a new dynamic in the crime fighting by incarceration theory -- money, or the lack of it, to be more precise. State budget problems in recent years, and the prospect of even tighter future budgets, have forced some states to reassess their capacity to house more and more prisoners. The result has been a panoply of programs and initiatives to cut costs and lessen the number of prisoners. Most astounding is the lack of consensus among states regarding what works and what doesn't.

Criminology is a burgeoning field with many competent and innovative researchers who have published countless studies on incarceration, prison diversion, and cognitive intervention. Yet, individual states are all over the map in terms of dealing with prison crowding.

Here are but a few examples:

In Colorado, the governor cut $19 million from the corrections budget based on a plan for the early release of about 8,000 inmates. The projections were faulty. The parole board is refusing about 80 percent of the inmates targeted for release. At the current rate only about 1,600 will be released, saving far fewer dollars than projected.

In Massachusetts, the state is considering $100 million in cuts from the corrections budget. The state's 17 prison facilities are all well over capacity. The budget cuts may result in the closing of four prisons and the furlough of hundreds of employees.

In Iowa, the corrections budget has been cut by $35 million. The cuts may result in 515 layoffs and the elimination of 262 vacant positions. There is also the possibility of closing a facility and reducing treatment costs.

In Pennsylvania, the state plans to build four new 2,000-bed prisons to ease overcrowding. The Department of Corrections is currently renting bed space from other states. In 2007 and 2008, Pennsylvania had the highest increase in prison population. While the nationwide increase was 1 percent, Pennsylvania's prison population grew at a whopping 9.1 percent.

In Utah, the state is facing an $850 million dollar budget shortfall. The prison system has nearly reached its capacity and a 330 bed facility has been put on hold. The expansion of another prison has also been shelved indefinitely.

In Michigan, the state has closed three prisons and five work camps and is renting bed space to other states.

In Washington, the corrections budget has been reduced by 6.7 percent and the Department of Corrections has responded by proposing to close one adult prison and one juvenile detention center. This follows the early release of some 8,000 offenders from community supervision.

In Tennessee, the state is in a $1.5 billion hole and the Department of Corrections proposed the early release of low level felons. The state has about 19,700 inmates and plans to trim that number by about 20 percent to save the state nearly $53 million.

In Ohio, the state passed a budget last July that cut funding for colleges and universities by $170 million and public libraries by $84 million. Ohio has spent nearly a billion dollars to build 23 prisons since 1987 and still maintains population levels at 130 percent of capacity.

Texas, the state that leads the nation in executions, has reconsidered building more prisons. It has diverted the money to evidence-based substance abuse programs. Prison population growth has stabilized.

Illinois has released about 1,000 non-violent inmates to save about $5 million a year. The state is also contemplating closing prisons and reducing its 45,000 prisoners by 11,000.

California Gov. Arnold Schwarzenegger is under court order to release 40,000 prisoners to ease the state's prison overcrowding problem. California has 172,000 prisoners in 33 institutions.

South Dakota has added 592 beds in the past four years and is building a new 250 bed prison to be opened this fall.

Kentucky's legislature has authorized the release of 3,127 inmates and has released another 3,874 offenders from community supervision to ease a budget crisis.

Arizona is accepting bids from private companies to take over their entire prison system. It is the first effort by a state to privatize prisons.

Missouri opened nine prisons between 1994-2004, and then the state closed a 1,000-bed prison in 2005. Missouri now has more prisoners than ever and limited space to house them.

In Connecticut, a budget shortfall has forced the state to close a minimum security prison in the face of a growing prison crowding problem.

In most states there are competing ideas on how to take on the very real problem of dwindling resources and prison overcrowding. Wisconsin is typical of most states. While early release of inmates has begun as a means to reduce a population that is 20 percent over capacity, there is also proposed legislation to build more prisons.

The above examples of 18 different states dealing with essentially the same issues -- dwindling resources and prison overcrowding -- should give pause to all Americans when Scott Brown says he favors leaving health care up to the states.

In these complex and difficult economic times, states should be mandated to adopt "best practices" to deal with issues that have a direct connection to public safety. The early release of prisoners or the building of new prisons at the expense of treatment programs, education or health care are issues that demand thorough evaluation and consistent implementation.

Is there a recognized evidence-based program that has been reviewed, analyzed and vetted by acknowledged experts regarding incarceration and prison overcrowding? A program that is verified by researchers and policymakers as having been successful in dealing with a problem that has the potential to affect so many aspects of state government? A model program that can be implemented nationwide that is both consistent and effective? There may well be, but right now there are 50 states looking in 50 different directions for the same thing.

How can we trust 50 states to implement a workable health care plan for 100 percent of their law abiding citizens when they can't come to a consensus on the best practice to deal with the housing and health care of their non-law abiding citizens that make up about 1 percent of the population?

That's a question Brown should answer before his Senate colleagues begin any filibuster of Obama's health care plan. •

Friday, February 5, 2010

U.S. Supreme Court Justice Anthony M. Kennedy pointed the finger at the California correctional officers union for the states prison overcrowding problem. During a recent lecture at Pepperdine University School of Law, Justice Kennedy said the union's support of the draconian three-strikes law was taking taxpayer dollars way from other important community needs.

The Los Angeles Times reported Kennedy's comments, "California now has 185,000 people in prison at $32,500 a year" each. He then urged voters and officials to compare that expense to what taxpayers spend per pupil in elementary school.

"The three-strikes law sponsor is the correctional officers' union and that is sick!" Kennedy said of the measure mandating life sentences for third-time criminal offenders.

There is little question that tough-on-crime legislation, including the three-strikes law, has had a powerful impact on prison crowding. However, much of the blame lies with the elected policy-makers who have been influenced by the "law and order industrial complex." There is enough blame to go around including judges, prosecutors, governors and legislators who have ridden the back of the "law and order tiger" to campaign success. Remember the comments of another Kennedy; President John F. Kennedy said in his inaugural address, "Those who foolishly sought power by riding the back of the tiger ended up inside."

Wednesday, February 3, 2010

In November of last year, I wrote an article published in the Youngstown Vindicator entitled "Killing with a firearm becoming more precise." (http://www.vindy.com/news/2009/nov/08/killing-with-a-firearm-becoming-more-precise/) I wrote that Baltimore's reduction in homicides was not keeping pace with the reduction in non-fatal shootings. I theorized that today's killers are not just random shooters, they are executioners. Why? Seventy-percent of victims know their killers, killers are using larger caliber guns and wounds are more deadly. I concluded the article with, "(W)hy are non lethal shootings decreasing at a greater rate than homicide. The answer is clear and alarming. Killers know their targets, are better armed and more lethal in their methods."

Last month the Baltimore Sun reported, "A review of the Baltimore Police Department's annual analyses of homicides shows that as murders fell, the number of people shot in the head rose from a small portion of the total killings more than a decade ago to about half last year. Police say those figures, along with anecdotal evidence, indicate an increasing number of close-range, execution-style shootings."

The Sun further reported, "More close-range, targeted shootings could explain why the homicide rate remains stubborn in light of more significant reductions in gun crime. Though both have fluctuated and are down considerably from two years ago, department statistics show that in the past decade, reported shootings fell 38 percent, from 725 in 2000 to 449 in 2009, while homicides dropped by 8.8 percent, from 261 to 238."

The federal Third Circuit Court of Appeals recently upheld the constitutionality of Delaware's death penalty. The appeal had delayed executions for more than three years. The issue focused on the administration of lethal injection.

It has been nearly two years since the U.S. Supreme Court in Baze v. Rees, 553 U.S. 35 (2008) held that lethal injection did not violate the Eight Amendment prohibition against cruel and unusual punishment. The three drug cocktail that anesthetizes, paralyzes and ultimately stops the heart (used at that time by every state with the death penalty) provided sufficient safeguards for offenders facing execution.

Last year, the botched execution of Romell Broom resulted in Ohio being the first state to deviate from the three drug protocol and administer a single drug, a lethal anesthetic, during execution. Ohio has carried out two single-drug executions without incident

In 2005, concerns were raised in Delaware after the prolonged execution, by lethal injection, of Brian Steckel. As a result of those concerns condemned killer Robert W. Jackson, III and Delaware's 17 other death row inmates objected to the state's lethal injection procedure. According to the News Journal attorneys for Delaware's condemned inmates detailed problems during executions, including inadequate qualifications and training of execution team members, improper dosages of the lethal injection drugs and odd procedures such as the execution team mixing drugs in the dark. These collective errors made Delaware's death penalty unconstitutional.

The Third Circuit Court did not buy their argument. In an opinion written by former Pennsylvania attorney general, Judge D. Michael Fisher, the court held that Delaware's lethal injection protocol was constitutional. However, Judge Fisher raised some concerns. Judge Fisher wrote,"The record before us reflects an occasional blitheness on Delaware's part that, while perhaps not unconstitutional, gives us great pause. We remind Delaware not only of its constitutional obligation ... but also of its moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

Delaware Attorney General Beau Biden expects to begin scheduling executions, although the 18 condemned offenders will undoubtedly seek review by the U.S. Supreme Court.

Tuesday, February 2, 2010

The H.F. Guggenheim Symposium on Crime in America is an annual forum where leading criminal justice practitioners, journalists and policymakers get together to discuss emerging trends, analysis and research being conducted around the world. The symposium closed yesterday in New York.

As rates of reported street crime are down dramatically nationwide David Kennedy of John Jay College of Criminal Justice attributed at least part of the crime decline to an “emerging sensibility that none of this is acceptable.”

According to The Crime Reporter , Criminologist Alfred Blumstein of Carnegie Mellon University went a step further. Blumstein speculated on the possibility of an “Obama Effect,” in which some young black men are more optimistic about their future because of the president’s election, and refrain from violence.

When crime rates began their historic decline in the late 1990's there were many reasons offered. At the time, Blumstein suggested the decline in crime was in part the result of the decline in the demand for crack cocaine. Others suggested incarceration, gun control, more police on the street and better policing to name a few. In fact, Steven Levitt suggested the legalization of abortion wiped out a whole generation of potential criminals.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.